Legal thoughts, since 2005.

This is the keynote that I gave at the 2011 LexisNexis Practice Management Annual Conference in Orlando, Florida on September 22, 2011. In it I examine the roots of the rapid technological change beginning in 1995, with a particular focus on the last 6 years. I then explore how emerging technologies, including cloud computing, mobile computing and social media, are affecting the legal field and are changing the way that business is conducted.
The video is about 41 minutes long.

This week's Daily Record column is entitled "Iowa Ethics Committee On Lawyers Using Cloud Computing."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.

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Iowa Ethics Committee On Lawyers Using Cloud Computing

According to a recent survey conducted by Gartner, a leading technology market research firm, cloud computing is one of the top tech trends for 2012. Of course, this conclusion isn’t exactly surprising, since Gartner and a host of other companies in the business of predicting the future of computing have been saying that for years now.

With the rise of mobile computing, the ability to access your data wherever you happen to be using whatever device is on hand obviously becomes of greater import. And cloud computing is the tool that makes immediate access possible, since it permits the user to access data stored in the cloud, as opposed to their own computer’s hard drive or company-owned servers, using just an Internet connection.

As cloud computing becomes more ubiquitous, lawyers across the country are taking notice and are increasingly asking legal ethics committees to weigh in on the ethics of lawyers using cloud computing services in their law practices.

The most recent decision, Ethics Opinion 11-01, was handed down in September by the Iowa Committee on Practice Ethics and Guidelines (online: http://t.co/dIhbw0MB). At issue was whether an Iowa lawyer or law firm could ethically use SaaS (software as a service), a form of cloud computing, in their law practice.

The Committee first explained that Comment 17 to the Iowa Rule of Professional Conduct Rule 32:1.6 controlled the analysis of the issue. Rule 32:1.6 [Comment 17] provides:“When transmitting a communication that includes information relating to the representation of a client, the lawyer must take reasonable precautions to prevent the information from coming into the hands of unintended recipients. This duty, however, does not require that the lawyer use special security measures if the method of communication affords a reasonable expectation of privacy. Special circumstances, however, may warrant special precautions. Factors to be considered in determining the reasonableness of the lawyer's expectation of confidentiality include the sensitivity of the information and the extent to which the privacy of the communication is protected by law or by a confidentiality agreement. A client may require the lawyer to implement special security measures not required by this rule or may give informed consent to the use of a means of communication that would otherwise be prohibited by this rule.”

The Committee then offered a wonderfully adept interpretation of its obligations under the rule--one that I hope to see in future opinions issued by other ethics committees when tasked with the obligation to assess the ethical issues presented by the use of new technologies in law offices:

“We believe the Rule establishes a reasonable and flexible approach to guide a lawyer’s use of ever-changing technology...It is beyond the Committee’s ability to conduct a detailed information technology analysis regarding accessibility and data protection used by the presently available SaaS services. Even if we had that ability our analysis would soon be outdated. Instead we prefer to give basic guidance regarding the implementation of the standard described in Comment 17.” (Emphasis added).

The Committee then offered lawyers a number of suggested avenues of inquiry when deciding whether to use any new technology in their law practice, not just cloud computing technologies. The suggested questions center around determining how accessible and secure the data will be:

Will I have unrestricted access to the stored data?

Have I stored the data elsewhere so that if access to my data is denied I can acquire the data via another source?

Have I performed “due diligence” regarding the company that will be storing my data?

Are they a solid company with a good operating record and is their service recommended by others in the field?

What country and state are they located and do business in?

Does their end user’s licensing agreement (EULA) contain legal restrictions regarding their responsibility or liability, choice of law or forum, or limitation on damages?

Likewise does their EULA grant them proprietary or user rights over my data?

What is the cost of the service, how is it paid and what happens in the event of non- payment?

In the event of a financial default will I lose access to the data, does it become the property of the SaaS company or is the data destroyed?

How do I terminate the relationship with the SaaS company?

What type of notice does the EULA require.

How do I retrieve my data and does the SaaS company retain copies?

Are passwords required to access the program that contains my data?

Who has access to the passwords?

Will the public have access to my data?

If I allow non-clients access to a portion of the data will they have access to other data that I want protected?

Recognizing that some data will require a higher degree of protection than others, will I have the ability to encrypt certain data using higher level encryption tools of my choosing?

All in all, I was very pleased with this opinion. It set forth a flexible standard and offered lawyers useful guidance while giving them wide berth to incorporate emerging technologies into their practices.

Nicole Black is a Rochester, New York attorney. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

This week's Daily Record column is entitled "Google Plus 101 for Lawyers, part 2."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.

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Google Plus 101 for Lawyers, Part 2

Last week I explained why I believe that Google Plus is an important addition to the social media landscape. Because Google Plus is the newest social network and already has a robust user base--having gained over 50 million users in just 31/2 months--it’s a good place to start for those lawyers considering their first foray into social media or for those interested in expanding their social media presence. Unlike the other networks, lawyers are sparse on Google Plus, so it’s easier to establish a strong presence and stand out from the crowd.

Ok, I’m convinced. How do I get started?

It’s simple. Sign up here: https://plus.google.com. Once you have done so, create a robust profile that includes a decent photo of you and clearly describes your location, areas of practice and interests. Make sure to fill out the field directly below your name using a few concise words to describe you, since that’s the only description that people see when they hover their cursor over your avatar when making a snap judgment as to whether to include you in their circles.

Next, locate people you know or whom you’d like to know. Google Plus has built in suggestions based on their own algorithms and information that you provide. Set up a few basic circles and then decide whom you’d like to include in your circles using Google’s suggestions.

Then, consider following the lawyers included on this list of lawyers and legal professionals on Twitter that was curated by Adrian Lurssen of JDSupra: http://tinyurl.com/gpluslawyers .

Next, check out the people followed by some of the more interesting lawyers that you’ve discovered. In many cases, you’ll locate additional legal professionals to follow.

Another way to locate people is to use the built in search function at the top of the Google Plus home page. You can search for a particular person or enter search terms such as “lawyers”, “litigators”, “realtors”, or any other classification that interests you.

How and what do I share?

Google Plus is particularly conducive to interactive, threaded discussions. It’s easy to share a link or start a discussion by inputting information into the “Share what’s new” field at the top of your Google Plus home page. You can then choose which circles to share the post with.

You can even direct the post to specific users by including their username preceded by a “+” (+username). You also follow that very same process--ie. “+username+”--when mentioning other users in comments to a post. Including their name in a post or comment ensures that they will be notified of the discussion and then have a chance to offer their two cents.

As for what you should share--consider sharing links to articles or blog posts that interest you or that you think would be of interest to a particular sub-set of people whom you follow. Insert the URL of the article or blog post into the “Share what’s new” field and Google Plus will automatically create a title and insert an image and link from the post. Before you post the link, note in the comment field why you think it’s interesting or ask your followers for their opinion on an issue raised in the article or blog post.

You can also simply input text into the “Share what’s new” field, whether it’s an update about your practice or a question about a specific issue addressed to your followers.

50% of posts should Provide Links, articles, other blog content, and re-sharing interesting posts from other users

30% should consist of replies to other users (interaction)

10% of of posts should be self-promotion, including firm accomplishments, and links to your blog

10% should relate to your personal interests (although I would be selective with that on this particular platform, since I believe Google Plus will ultimately be more business-oriented than, for example, Facebook).

Is Google Plus the solution to all my problems?

Unfortunately, no it’s not. It’s just a social media platform. Participating on Google Plus may benefit your practice--and it may not. Whether your practice stands to benefit from your interaction on any social media platform, including Google Plus, depends on a number of factors, including your goals, how long you’ve been in practice, whether you already have a steady stream of business, how strong your professional network is, your geographic region, your areas of practice and your comfort level with online technologies.

That being said, if, after carefully researching your options, you decide using social media would be a good investment for your law firm, Google Plus is a good place to start.

Nicole Black is a Rochester, New York attorney. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

This week's Daily Record column is entitled "A look at Google Plus 101 for lawyers, part 1."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.

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A look at Google Plus 101 for lawyers, part1

What is Google Plus?

Google Plus is Google’s new social network. It was released in private beta on June 28th and had over 25 million users within four weeks. It was opened to the public in late September and it is now estimated that it has over 50 million users. To put that in perspective, consider that it took Facebook, which launched in 2004, nearly 3.5 years to reach that many users.

How is it different from all the other social networks?

Google Plus is a social network that was built from scratch after the other major networks were well established. As a result, it offers a number of unique features intended to address the complaints of users on other networks. These features arguably make it more appealing to professionals who wish to use social media as a business tool.

So, what are these new features?

First, Google Plus allows you to organize those that you follow into circles and then share information with just one circle, many circles or the public. For example, you can create circles called “legal professionals,” “criminal defense lawyers,” “family,” “friends” and “clients.” In other words, you can separate your clients from everyone else, thus solving a problematic issue for many lawyers who prefer to avoid sharing personal information with clients, but fear that they might offend clients by refusing a request to connect.

Circles make it easy to share and receive targeted information from your connections. You can share links and thoughts about legal issues with other legal professionals, personal information and fam- ily photos with friends and family, and links to content that might be of interest to lay people with your clients.

Another useful feature is the ability to engage in video conferences with other users using the “Hangouts” feature. To do this, you simply click on the “start a hangout” icon on the main page and launch the platform using your computer’s webcam.

New collaborative features will soon be added to Hangouts, which will make this feature all the more useful for lawyers. These will include the ability to: 1) give a particular hangout a name; 2) share notes using a sketchpad; 3) use and refer to Google Docs and 4) share your screen with other participants. These added collaborative features will make Hangouts particularly appealing to lawyers who may want to use Hangouts to conference with other attorneys or clients about a case.

Finally, compared to the other major social networks, Google Plus is particularly conducive to interactive, threaded discussions. It’s easy to start a discussion and you can direct it to specific users whom you name in the post or comment, thus ensuring that they will be notified of the discussion and then have a chance to offer their two cents.

Is it really worth it to join yet another social network?

In my opinion, for many lawyers, it is. As soon as Google Plus came out, my gut instinct told me it was the next big social network. And, I feel even more strongly about it now that Google has rolled out a number of new features and opened up the platform to the public. Most importantly, Google has finally made its API available to third party developers, which means that it will be easier for users to work Google Plus into their daily work flow and make it quicker and easier for people to share and interact on Google Plus.

In my opinion, for lawyers considering their first foray into social media or those interested in expanding their social media presence, Google Plus is the place to be right now. Instead of following the herd to already well-traveled sites, why not invest time engaging on an emerging platform created by one of the Internet giants that has tons of potential? The other platforms are already flooded with lawyers and it’s difficult to stand out from the crowd. Lawyers considering using social media to forward their goals would be wise to consider Google Plus while it’s still it in its early phase. Doing so will allow you to uniquely position yourself to take advantage of this emerging platform.

Tune in next week, when I’ll explain how to set up an account and will give you tips and pointers on how to use some of Google Plus’ features and will offer suggestions regarding how to interact and share effectively on Google Plus.

Nicole Black is a Rochester, New York attorney. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

This week's Daily Record column is entitled "A Look at Lawyers' Use of Technology in 2011."

A PDF of this article can be found here and my past Daily Record articles can be accessed here.

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A Look at Lawyers' Use of Technology in 2011

The results of the American Bar Association’s annual legal technology report, the 2011 ABA Legal Technology Survey, were released over the summer and include some interesting statistics. Apparently lawyers, although historically slow to adapt to change, are increasingly using emerging technologies in their law practices.

This is because the impact of certain technologies cannot be denied. Specifically, Internet-based and mobile technologies, including cloud computing and social media, are profoundly affecting both our personal and professional lives. For that reason, lawyers are now incorporating these new tools into their law practices at rates never before seen.

First, let’s turn to cloud computing. For those unfamiliar with the concept, it simply means that data is stored on a server owned by someone else and the data is then accessed from any device with an Internet connection. Popular examples include web-based email such as Gmail or Hotmail, document creation and sharing via services such as Google Docs or Microsoft Office 365, and online document storage through such services as DropBox. There is also an increasing offering of cloud computing platforms developed specifically for lawyers.

According to the ABA’s 2011 survey, 23.2% of lawyers use online platforms to create and share documents, 22.8% use online services for messaging and communication, 17.2% for invoicing and bill payment, and 15.3% for scheduling and calendaring. Another interesting statistic: 23% of responding lawyers now offer clients access to information relating to their case via a secure online portal, a practice that I believe will be commonplace within the next few years.

The reason attorneys are moving toward cloud computing? Convenience. 70% of attorneys that use these services cited the ability to access data from anywhere as the main incentive, while 55% stressed the importance of 24/7 access to data. Simplicity and affordability were also cited as important factors. Low cost was important to 49%, quick start up time was a factor for 44% and 43% appreciated the ability to eliminate IT staff and software management requirements.

The main reason lawyers are reluctant to use cloud computing technology? Lack of familiarity. Hopefully my book about cloud computing, which will be published by the ABA this fall, will help to alleviate that problem. Other reasons cited by those concerned about using cloud computing in their practice include confidentiality and security concerns (47%) and the lack of control over data due to outsourcing it to a third party (41%).

Next up, mobile technology. Like the general population, lawyers have quickly adapted to this revolutionary change. Smart phone use rose from 79% in 2010 to 88% in 2011, with 46% of lawyers using Blackberrys, although that number drops to 33% for small firms with 2-9 attorneys. Interestingly, since 2010, iPhone use increased dramatically and is now at 35% overall and at 46% for small firms with 2-9 attorneys. Android phones also have a respectable showing and are used by 17% of responding attorneys.

Tablet use is also on the rise, even though the iPad was just introduced 1.5 years ago in April of 2010. The iPad is used by 89% of those lawyers who use a tablet device for work-related tasks and 15% of respondents used a tablet to conduct work while outside of their primary workplace. For firms with over 500 attorneys, that number increased to 26%.

Finally, let’s turn to social media. LinkedIn was, by far, the most popular site used by individual lawyers, with 62% using that site, followed by Facebook at 22% and Twitter at 6%. 73% of respondents reported using social media sites for career development and 71% used them for networking. Although 53% of attorneys participating in social media reported using it as a client development tool, only 12% obtained a client directly or via a referral as a result of their participation in social media.

The bottom line: lawyers are doing a respectable job of learning about new technologies and incorporating them into their practice. I believe the reason our profession is keeping pace so well is because lawyers realize that these new tools make their job easier and provide a level of convenience and flexibility never before seen. Most lawyers now recognize that these newfound technologies aren’t the enemy. Instead, they are simply innovative, affordable tools that allow lawyers to better serve their clients. And, at the end of the day, isn’t that what’s most important?

Nicole Black is a Rochester, New York attorney. She co-authors the ABA book Social Media for Lawyers: the Next Frontier, co-authors Criminal Law in New York, a West-Thomson treatise, and is currently writing a book about cloud computing for lawyers that will be published by the ABA in early 2011. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at nblack@nicoleblackesq.com.

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